Termination of residence: Only after lawful and fair dismissal

Snyders v De Jager (Appeal) (CCT186/15) [2016] ZACC 55 (21 December 2016) per Zondo J (Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Mhlantla J and Nkabinde J concurring)

The Constitutional Court allowed the appeal and ordered the eviction of the present employees from the dwelling on a farm and restored the right of the appellant to occupy the dwelling, despite having being dismissed as an employee.  Section 19(3) of the Extension of Security of Tenure Act, 1997 considered.  An appeal of an eviction order granted by a magistrate and confirmed by the Land Claims Court lies to the SCA.  Terminating employment does not automatically terminate the right of residence.  In this matter the owner failed to comply with the substantive and procedural requirements for terminating residence and eviction.

Selected quotations from judgment (without footnotes)

Eviction proceedings: Magistrate’s Court

[8]   For a year after Mr Snyders had been dismissed, Ms de Jager did not take any steps to get Mr Snyders and his family to vacate the house on the farm. It was only at about the end of March 2009 that she instituted an application in the Magistrate’s Court, Ladismith, for their eviction.  Mr and Mrs Snyders opposed the application and deposed to affidavits in support of their opposition.

[9]   Ms de Jager’s case against the applicants as set out in her affidavit was that Mr Snyders’ right of residence on the farm was dependent upon his continued employment and that, since he had been dismissed, he no longer had a right to reside on the farm. She did not say in the affidavit what it was that Mr Snyders had done that led to his dismissal.  Ms de Jager also said that she was in need of the house then occupied by Mr Snyders and his family as she had a new employee that she wanted to accommodate in that house.

. . . . .

[14]   The Magistrate’s Court subsequently handed down its judgment. It granted an order declaring that it was just and equitable for Mr Snyders and his family to vacate the Voorbaat Farm as described in the application on or before 20 December 2012.  It also ordered that, if Mr Snyders (and his family) did not vacate the premises within that time, the Sheriff should execute the order at or after 12h00 on 31 December 2012.  The order was suspended pending its confirmation by the Land Claims Court in automatic proceedings in terms of section 19(3) of ESTA.  The judgment appears to have been handed down on 14 November 2012.

. . . . .

[17]   The Court held that there had been compliance with section 10(1), (2) and (3) of ESTA.[1] With regard to section 10(1), the Court said that, as an occupier, Mr Snyders had prejudiced Ms de Jager through the damage caused by the geese he was keeping.  The Court also said that he built a pigsty in such a manner that it interfered with the proper operations of the farm.  It also relied upon the fact that Mr Snyders had brought other people to stay on the farm with him without Ms de Jager’s permission.  The Court said that by so doing Mr Snyders was in breach of section 6(3) of ESTA.[2]

. . . . .

Land Claims Court

[19]   In terms of section 19(3) of ESTA, an eviction order granted by a Magistrate’s Court is subject to automatic review by the Land Claims Court before it can operate. Under that provision the Land Claims Court may confirm such an order in whole or in part, can set it aside in whole or in part, can substitute such an order in whole or in part, or remit the case to the Magistrate’s Court with directions to deal with any matter in the manner as the Land Claims Court may think fit.

. . . . .

Supreme Court of Appeal

[21]   Ms de Jager adopted the attitude that, where a Magistrate’s Court has granted an eviction order under ESTA which is subsequently confirmed by the Land Claims Court under section 19(3) of ESTA, an appeal lies to the Land Claims Court and not to the Supreme Court of Appeal. Her counsel contended that in effect and in substance an appeal in this situation is an appeal against the decision of the Magistrate’s Court and not against a decision of the Land Claims Court and that, therefore, the Supreme Court of Appeal may not entertain an appeal against a decision of a Magistrate’s Court.

. . . .

Jurisdiction

[28]   The matter raises the interpretation of section 19(3) of ESTA. ESTA is legislation that was enacted to give effect to the Constitution.  The interpretation or application of the legislation is a constitutional issue.  That means that this Court has jurisdiction.  This Court also has jurisdiction by virtue of the fact that the section 19(3) issue we are called upon to decide constitutes an arguable point of law of general public importance that deserves to be considered by this Court.

. . . . .

The appeal

[30]   The first question is whether, in a case where a Magistrate’s Court has granted an eviction order under ESTA and that order is subsequently confirmed by the Land Claims Court, an appeal lies to the Supreme Court of Appeal or the Land Claims Court.

. . . . .

[36]   I am of the view that the power given to the Land Claims Court in section 19(3)(a) to “confirm such order in whole or in part” is a power to confirm that the order or judgment of the Magistrate’s Court is correct and free from irregularities that would render the decision susceptible to being set aside. The power to “set aside such an order in whole or in part” in section 19(3)(b) is the Land Claims Court’s power to set aside an eviction order of a Magistrate’s Court where the Land Claims Court thinks that such an order should not have been made and was wrong.  The powers that ESTA gives to the Land Claims Court under section 19(3)(a) to (d) are as wide as any powers that a court usually has in deciding a matter on appeal.  They do not appear to me to be limited to powers that a court has in review proceedings.

. . . . .

[45]   In reaching its conclusion, the Supreme Court of Appeal followed a line of decisions of the Land Claims Court which are to the same effect. They started with Magodi[1] which was followed by other cases including Klaase,[2] Goosen[3] and ended with Brummer[4] to which the Supreme Court of Appeal referred in its judgment in the present case.

[46]   All these cases appear to be based on the proposition that, when a Judge of the Land Claims Court confirms a decision of a Magistrate’s Court under section 19(3), the decision of that Judge is not a decision of the Land Claims Court that has a legal status and legal effect. As a result, in those judgments the various Judges of the Land Claims Court took the view that in those cases it is the decision of the Magistrate’s Court that may be appealed against and that the appeal would lie to the Land Claims Court.

. . . . .

[50]   The Supreme Court of Appeal was, therefore, wrong in its conclusion and in striking the matter off the roll. It should have held that the appeal lay to it.  It also ought to have considered and determined the appeal on the merits.  Accordingly, we should set aside the decision of the Supreme Court of Appeal.  Once we have done that, the next question is whether we should remit the matter to the Supreme Court of Appeal to deal with the merits of the appeal or whether we should determine the merits ourselves.  If we decide the merits ourselves, we would be dealing with the correctness or otherwise of the decision of the Land Claims Court confirming the Magistrate’s Court’s order.  In my view, that would in effect take us to the question whether the Land Claims Court was correct in confirming the Magistrate’s Court’s order as correct.

. . . . .

Was Ms de Jager entitled to the eviction of Mr Snyders and his family?

[52]   The starting point is to establish whether Mr Snyders was an occupier under ESTA. The word “occupier” in ESTA is defined as meaning “a person residing on land which belongs to another person, and who has or on 4 February 1997 or thereafter had consent or another right in law to do so, but excluding” certain categories of persons to which Mr Snyders does not belong.  This means that a person who resided on land belonging to another and “who has or on 4 February 1997 or thereafter had consent or another right in law to do so” is an occupier if he or she does not fall within the exceptions provided for in paragraphs (b) and (c) of the definition.

[53]   Ms de Jager appears to have accepted that on the Stassen Farm Mr Snyders was an occupier as defined in ESTA. She said nothing that suggests that Mrs Snyders is herself not an occupier as defined in ESTA.  In the absence of an explanation from Ms de Jager or the Stassen’s to the effect that the consent for Mrs Snyders to reside on the farm was one that was dependent upon Mr Snyders continued right of residence on the farm, we have to assume that the consent she had to reside on the farm was also the one contemplated in the definition of “occupier”.  That would make her an occupier as well.  Accordingly, for purposes of this case we have to determine the matter on the basis that she, too, was an occupier as defined.

. . . . .

[59]   Section 10 governs the eviction of a person who was an occupier on the land as at 4 February 1997.  Mr Snyders falls into this category of occupiers. . . . .

. . . . .

[67]   If a person has a right of residence on someone else’s land under ESTA, that person may not be evicted from that land before that right has been terminated. In other words, the owner of land must terminate the person’s right of residence first before he or she can seek an order to evict the person.  However, it must be borne in mind that the termination of a right of residence is required to be just and equitable in terms of section 8(1) of ESTA.  Section 8(2) deals with the right of residence of an occupier who is an employee of the owner of the land or of the person in charge and whose right of residence arises solely from an employment agreement.  It provides that such a right of residence may be terminated “if the occupier resigns from employment or is dismissed in accordance with the provisions of the Labour Relations Act”.

. . . . .

[69]   In any event Ms de Jager did not terminate Mr Snyders’ right of residence. She assumed that, once she had terminated his contract of employment, that automatically terminated his right of residence as well.  She said that the part of the letter of dismissal that told Mr Snyders that he was to vacate the house in a month’s time was the part that informed Mr Snyders of the termination of his right of residence.  A copy of that letter was attached to Ms de Jager’s founding affidavit in the Magistrate’s Court.

. . . . .

[75]   Counsel for the Snyders family also contended that the Magistrate’s Court should not have issued an eviction order because the Snyders family had not been afforded any procedural fairness by way of an opportunity to be heard before they were required to vacate the property. It is common cause that the Snyders family were never invited to make representations to Ms de Jager on why they should not be required to vacate the house before they were actually required to vacate it.  In my view, the submission by counsel for the Snyders family has merit.

ESTA requires  the termination of the right of residence to also comply with the requirement of procedural fairness to enable this person to make representations why his or her right of residence should not be terminated.  This is reflected in section 8(1)(e) of ESTA.  A failure to afford a person that right will mean that there was no compliance with this requirement of ESTA.  This would render the purported termination of the right of residence unlawful and invalid.  It would also mean that there is no compliance with the requirement of ESTA that the eviction must be just and equitable.